Police privilege

Snapper Mitchell was killed 18 months ago on a winter night after being chased by Atlanta police on Mt. Zion Road. The officers said when Mitchell pulled a pistol on them, they fired four shots at the man. He died at the scene.

After a 10-month investigation, the department’s homicide unit ruled that police had acted appropriately in shooting Mitchell, according to Jason Schultz, an attorney hired by Mitchell’s family.

Schultz has his suspicions. He wants to know how Atlanta investigators arrived at their conclusion that their officers did no criminal wrong. The police report, for example, doesn’t mention whether Mitchell fired at police.

Schultz wants to know if investigators found shell casings at the scene that match the gun Mitchell allegedly carried. Mitchell had a 9-mm pistol and some marijuana on him, according to the police report. The gun was stolen, Schultz says.

“I’m interested to find out [what’s in the police files] about the gun he had,” Schultz says. “The last owner it was traced to was two years ago.”

Without those and other details, Schultz says he has no way of knowing whether the shooting is grounds for a lawsuit.

But Schultz has been stymied in his efforts to look at the police records of the investigation that followed the shooting, as well as the internal investigation of the officers who fired the shots.

Twice Schultz requested all the information surrounding the case, including crime scene reports and photographs. The city’s first response was that he couldn’t see the material because the criminal investigation wasn’t done yet. A while later, the city wrote to Schultz that he could see the file because the criminal investigation was closed. But before he could take a peek, a third letter set him back again, claiming that because the police department’s Office of Professional Standards was investigating the officers in question, the file was still off-limits.

Schultz grew so frustrated that in late May, he filed a lawsuit demanding that the police produce the file, as per the state’s Open Records Act. This week, 12 days after he filed the suit, Schultz took a call from a city attorney, who told Schultz he could see the file within the week. He says he has no plans to drop the suit.

Did fear of a court battle and possible public embarrassment prompt the switch? Not likely. According to city attorney Karen Woodward, Schultz is allowed access to the file because the Office of Professional Standards investigation has ended. It wrapped up after her office sent Schultz the last letter denying access to the file and before Schultz filed suit in Fulton Superior Court.

“No one was trying to keep anything hidden,” Woodward says.

State law, and not the police department, kept the file hidden, according to deputy city attorney Rosiland Rubens Newell. Newell points to a clause in the state’s Open Records Act that says police records remain confidential after a criminal investigation concludes if there is an ongoing administrative investigation into an officer’s actions. In the Mitchell case, the administrative investigation lasted months longer than the criminal one.

“I would think that it’s always in the best interest of the department to do as thorough an investigation as necessary but certainly not drag its feet,” Newell says of administrative investigations in general.

Schultz says dragging feet is exactly what the department did.

“If there was some hearing that would affect somebody’s job ... they would have had that hearing a long time ago,” Schultz says. “How can it take so long? This was supposed to be a straight-up shooting.”

The Fulton County District Attorney’s Office currently is investigating the Mitchell shooting to determine if the case should be brought before a grand jury. The DA’s year-old Public Integrity Unit investigates all police shootings in Atlanta, as well as allegations of government corruption.

Assistant District Attorney Stacey Hydrick, with the help of one investigator, is looking into allegations against 35 Atlanta police officers who have been involved in shootings over the past five years.

Some cases, she says, are easier to investigate than others.

“An incident caught on [a patrol car’s] videotape, when you see a perpetrator firing first at a police officer, is very clear,” Hydrick says. “But you don’t have that luxury in all those cases. If it happens in the middle of the woods, and it’s just the officer and the perpetrator, it might be a little more difficult and more time-consuming to investigate.”

That was the scenario between Mitchell and officers J.E. Franklin and T.H. Whaley. Still, the homicide unit was able to wrap up its investigation within a year, whereas the administrative investigation took longer.

Atlanta police spokesman John Quigley says a number of factors can delay an administrative investigation.

“It could be a very technical thing, because somebody in a certain position hasn’t signed off on it,” Quigley says. “It could be something very germane, something very bureaucratic.”??